[47] In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case. First, the brevity of the primary judge’s substantive reasoning for rejecting the two grounds of judicial review has already been noted. The primary judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above). The primary judge’s reasons for rejecting ground 2 are set out in [53] of his Honour’s reasons for judgment. In both instances, the primary judge’s reasons amount to little more than assertions or conclusions. In particular, in respect of ground 1, the primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE. His Honour said that this matter had been expressly taken into account in the IAA’s reasons “as summarised above”. No specific cross-reference was given to any particular part of the IAA’s reasons for decision which the primary judge considered supported his conclusions. In particular, no specific cross-reference is given for his Honour’s conclusions that:

(a) the IAA took into account the appellant’s siblings’ suspected links to the LTTE; and

(b) there was no failure by the IAA to consider the familial connection of the appellant to his siblings.

[48] These difficulties are not overcome by the fact that in [37] of the IAA’s reasons for decision it stated that it had considered the appellant’s circumstances “in their totality”. It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour’s reasons). Whether in fact the IAA considered the appellant’s circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA’s reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant. The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA’s bald assertion.

[49] Similar difficulties are presented by the inadequacy of the primary judge’s reasons for rejecting ground 2. In [52] of his Honour’s reasons for judgment, the primary judge referred to the IAA’s identification of the appellant’s mother as a person who had complained to the HRC, yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka. His Honour then said at [53] that the IAA’s adverse reasoning “was open on the material and cannot be said to lack an evident and intelligible justification”. As the Full Court observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion.

[50] As to the appellant’s complaint that the IAA failed to give adequate reasons as to why he was not at risk, the primary judge referred at [53] to the significance which the IAA attached to the appellant’s release and its finding that he suffered no harm from the interrogations. Reference was also made to the IAA’s findings that neither the mother nor other members of the appellant’s family been harmed since he left Sri Lanka. What is missing from the primary judge’s reasons, however, is any attempt to address the appellant’s reliance on the Guidelines, or the significance of his uncontested evidence that his siblings were still missing.

[51] Nor does the primary judge adequately explain why he did not accept the significance in the appellant’s case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance. This threat, which the IAA found had been made, arguably put the appellant in a different position from his mother. It is possible that the primary judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having “suffered no harm in relation to the interrogations that then subsequently took place…”. But it is far from clear that this is what his Honour had in mind, bearing in mind that the appellant’s complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his siblings’ disappearance. This ambiguity further exposes the inadequacy of the primary judge’s reasons.

[52] These matters were relied upon by the appellant before the IAA. They were also prominent in his judicial review challenge before the FCCA. In my respectful view, the matters had to be directly addressed by the primary judge, but they were not. Both the appellant and any reader of his Honour’s reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the appellant’s judicial review challenge.

[53] Secondly, and related to the first matter, the primary judge never grappled directly with important elements of the appellant’s primary claim. That claim was that the IAA fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the LTTE by reason of his family association with the two missing siblings. At the forefront of this claim the appellant relied on three paragraphs in the Guidelines which identified “risk profiles”, in particular sub-paragraph 6. The primary judge made no reference at all to the Guidelines. Nor did he explain why the appellant’s reliance on them was misconceived.

[54] It may well be that there is an adequate explanation as to why the Guidelines did not apply. But, if that is so, it is not evident from a fair reading of the primary judge’s reasons for judgment. The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the Guidelines, which the appellant squarely raised before both the IAA and the primary judge, did not indicate that he had a risk profile. The primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE and also that it did not fail to consider the familial connection. But, as noted above, the primary judge made no express cross-reference to any part of the IAA’s reasons for decision to underpin these assertions. One rhetorically asks whether his Honour had in mind the IAA’s reasons at [10] and/or [13] of its reasons for decision. If so, a related question arises as to how these paragraphs provide an adequate response to the appellant’s claims. It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.

[55] It goes without saying that these ambiguities and shortcomings in the primary judge’s reasons for judgment are not resolved by reference to what was said in the transcript. Reasons for judgment should speak for themselves. They are directed not only to the parties but to the community at large who will not have easy access to the transcript.

[56] It is proper to acknowledge that the FCCA’s migration jurisdiction is a high volume and challenging jurisdiction. Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided. Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties’ respective cases. Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party’s case. It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court’s reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid. The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21] Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22] Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33]. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt. For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act. If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction. The injunction must first be set aside. It follows that disobeyance of the injunction may be a contempt of Court.